Richard Kungu Manyara v John Kihaguru Nditu [2018] KEELC 2233 (KLR)
The bottom line
#The court refused to strike out a land suit filed under the wrong procedure, converting it to a plaint instead so the real dispute could be heard.
What this practically means
#Executive summary
#Key legal issues
#Whether invoking the wrong procedure (Order 36) in the Originating Summons deprived the court of jurisdiction and warranted striking out the suit
The plaintiff adopted the wrong procedure as the reliefs sought (declaration of trespass, eviction and mesne profits) are not simple matters suitable for Originating Summons; however, the procedural breach did not attract striking out, and the court exercised its discretion under Order 37 rule 19 to convert the proceedings into a suit begun by plaint.
The court accepted, consistent with Kibutiri v Kibutiri and Beatrice Nyambura Mucheru v Joyce Wanjiru Mucheru, that Originating Summons are for simple matters only. The reliefs sought here were complex and could not be dealt with summarily. Yet guided by Article 159(2)(d), Sections 1A and 1B of the Civil Procedure Act and the Salat principles on procedural lapses, and noting no injustice was shown, the court declined the draconian remedy of striking out and instead ordered the suit to continue as if begun by plaint, deeming the Summons and affidavit the plaint.
The legal test for a valid preliminary objection
The test from Mukisa Biscuit was applied: a preliminary objection must be a pure point of law capable of disposing of the suit, argued on assumed pleaded facts, and cannot depend on ascertaining facts or the exercise of judicial discretion.
The court recited the locus classicus of Law JA in Mukisa Biscuit Manufacturing Co. Ltd vs West End Distributors Ltd and distilled three tests: the objection must raise a pure point of law; it is argued on the assumption that all facts pleaded by the other side are correct; and it fails where facts must be ascertained or judicial discretion is sought. It then considered whether the procedural defect justified striking out as sought.
Legal principles established
#- A valid preliminary objection must be a pure point of law, argued on the assumption that the facts pleaded by the other side are correct, and cannot be raised if any fact has to be ascertained or if the exercise of judicial discretion is sought.
- The Originating Summons procedure is intended for simple matters and cannot be used to determine claims involving serious or complex questions of law and fact.
- Where a suit is wrongly begun by Originating Summons, the court may, in the interest of substantive justice under Article 159(2)(d) and the overriding objective, order under Order 37 rule 19 that the proceedings continue as if the cause had been begun by plaint rather than strike out the suit.
Court orders
#- 1.The preliminary objection dated 27th March 2017 is dismissed
- 2.The proceedings shall continue as if the cause had been commenced by filing a plaint
- 3.The Originating Summons dated 22nd February 2017 and the affidavit in support shall be collectively deemed to be the plaint
- 4.The plaintiff to file and serve the documents referred to in Order 3 rule 2 (b) (c) and (d) of the Civil Procedure Rules within 14 days from the date of delivery of the ruling
- 5.The defendant to file and serve defence and all compliance documents within 14 days of service of the plaintiff's documents
- 6.Costs of the preliminary objection shall be in the cause
- Jurisdiction invoked
- Order 36 Rules 3A and 7 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and all other enabling provisions of the law (as invoked by the plaintiff); Article 159(2)(d) of the Constitution and Sections 1A and 1B of the Civil Procedure Act relied on by the court
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Richard Kungu Manyara v John Kihaguru Nditu [2018] KEELC 2233 (KLR)", Case Analysis (2018). Originating Summons dated 22nd February 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/2233/eng@2018-07-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.